U.S. v. ARROYO

The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

I. BACKGROUND

Defendant Renames Arroyo ("Arroyo") pled guilty pursuant to a
plea agreement to three counts of using a telephone in connection
with a narcotics offense in violation of 21 U.S.C. § 843(b). On
July 20, 2001, this Court sentenced Arroyo to a term of
incarceration of 144 months, which was the stipulated sentence
under the plea agreement and the guidelines sentence recommended
in Arroyo's pre-sentence report. At the time of his sentencing,
Arroyo was serving a New York State sentence of two to four years
incarceration for an unrelated charge of criminal possession of a
weapon in the third degree. Although Arroyo was transferred from
state to federal custody on May 21, 2000, he continued to receive
credit for his state sentence at all times until his state
sentence terminated with his parole on January 8, 2002. Arroyo's
federal sentence was imposed to run concurrently with the
undischarged portion of his state sentence pursuant to section
5G1.3(c) of the United States Sentencing Guidelines. By letter dated May 20, 2004, Arroyo seeks credit for the 15
months he served in pre-sentence federal detention and requests
that the Court issue an amended judgment under Federal Rule of
Criminal Procedure 36 to reduce his sentence to 129 months on
those grounds. By letter dated June 23, 2004, the Government
opposes Arroyo's request.

II. DISCUSSION

In support of his request, Arroyo relies upon subsection (c) of
section 5G1.3 of the United States Sentencing Guidelines ("§
5G1.3"), which is a policy statement that provides the sentencing
court with broad discretion to impose a sentence on a defendant
that is subject to an undischarged term of imprisonment to run
concurrently, partially concurrently, or consecutive to the
undischarged term. See U.S.S.G. § 5G1.3(c). Contrary to
Arroyo's contention, it was not the Court's intention to grant
him the 15 months credit he now seeks because he was already
receiving credit for this time toward his state sentence. Rather,
the Court intended that his federal sentence, imposed on July 20,
2001, run concurrently with the undischarged portion of his state
sentence. The record is clear (and Arroyo does not dispute) that
Arroyo did in fact receive the benefit of serving his two
sentences concurrently as of this date, and thus, the Court's
intention was realized. Arroyo's request, in essence, would grant him credit for both
the undischarged and discharged portions of his state sentence
 a result that the Court never intended. Indeed, Arroyo's
attempts to obtain this credit directly from the Bureau of
Prisons ("BOP") failed because under federal law, the BOP is
precluded from granting credit for time in pre-sentence detention
that has already been credited against another sentence. See
18 U.S.C. § 3585(b). The Court rejects Arroyo's request to
"double-dip" and receive credit for both his state and federal
sentences prior to the date that the federal sentence was
imposed.

The Court agrees with the Government that Arroyo's reliance on
Application Note 2 of § 5G1.3 is misplaced because that
provision, which states that a court's sentence should be
adjusted to account for time already served, is inapplicable to
this case. As the plain language of Application Note 2 makes
clear, it applies only to subsection (b) of § 5G1.3. Subsection
(b) governs situations where "the undischarged term of
imprisonment resulted from offense(s) that have been fully taken
into account in the determination of the offense level for the
instant offense, . . ." U.S.S.G. § 5G1.3(b). The record is clear
that Arroyo's state offense was not considered in the
determination of his offense level for federal sentencing
purposes, nor does Arroyo so allege. Thus, this case is governed by the "catch-all" provision of subsection (c),
to which Application Note 2 does not apply.*fn1 See
United States v. Fermin, 252 F.3d 102, 108-09 (2d Cir. 2001).

In Fermin, the Second Circuit rejected the defendant's
request for credit toward his federal sentence for time served on
a state parole violation and held that "subsection (c) does not
permit courts to reduce a defendant's sentence below the
guidelines range for time already served on a different sentence,
and does not import the `credit' approach of Application Note 2
to subsection (b)." Id. at 109-10. Accordingly, Arroyo has no
basis to seek this credit.

III. ORDER

For the foregoing reasons, it his hereby

ORDERED that the request of defendant Renames Arroyo for an
amended judgment to reduce his sentence from 144 to 129 months to
credit him for time served in pre-sentence detention is DENIED.

SO ORDERED.

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